Employers Risk Fines, Jail and More for Interfering

(RIVERWOODS, ILL., September 22, 2004) – Voting is more than a personal civic duty, according to CCH INCORPORATED (CCH), a leading provider of employment law information, services and software (cch.com). In more than half of the United States, voting takes legal precedence over work, and employers must allow employees time off to cast their ballots.

Employers in many states risk fines or even jail sentences for interfering with employees’ right to exercise their franchise. In other states, however, the law offers no special protection or incentive for someone who takes time out of the workday to vote.

Typically, time-off-to-vote laws require that employees who are registered voters be given time off from work – usually up to two or three hours – in which to visit the polls.

"In many cases, however, time off is only guaranteed if the employee does not have sufficient time outside of working hours to cast a ballot," explained CCH Labor Law Analyst Ronald Miller, J.D.

States Strike a Balance

Laws governing time off to vote can be found in 30 states. While federal law protects a citizen’s right to vote, it is individual state law that arbitrates between that right and the rights of employers to discipline workers or withhold pay for time not worked. Many of these rules are trying to strike a balance between the interests of employee and employer.

In 21 states, employees must be paid for time spent voting: employers are prohibited from penalizing an employee or making deductions from wages for at least part of the time the employee is authorized to be absent from work to cast a vote. Five states – Hawaii, Maryland, Missouri, Oklahoma and Wyoming – spell out in their statute books that workers will be paid for their time off only if they actually vote. In Maryland, employees must establish that they either voted or attempted to vote.

Seventeen states require employees to give advance notice of their intention to take time off. Iowa and West Virginia add the requirement that the notification be in writing. Employers are allowed to specify the hours to be taken for voting in 20 states.

Range of Penalties

"The penalties for firms that violate time-off-to-vote laws range from trivial to a corporate death sentence," said Miller. The highest fines are authorized in Arizona, Kansas and Missouri, where an individual employer may be fined $2,500. Arizona further provides for corporations to be assessed up to $20,000. Twelve states add possible jail time, in some cases up to a year, to monetary penalties. In New York and Colorado, businesses can forfeit their corporate charters if found in violation.

On the other end of the scale is Arkansas, where failure to give an employee an opportunity to vote – without pay – is punishable by a fine as low as $25.

Laws requiring payment for time off to vote were approved in 1952 by the U.S. Supreme Court in a pair of decisions involving Missouri and California laws: Day-Brite Lighting, Inc. v. Missouri and Tide Water Associated Oil Co. v. Robinson. They were upheld as a proper exercise of the police power of the state.

Included is a chart listing those states with time-off-to-vote laws, along with information on which employees are covered, the amount of time that may be taken, special conditions under which time off may be taken and penalties for employer violations of the laws.

In addition to the U.S. states listed here, Puerto Rico provides that any day a general election, a referendum of general interest or a plebiscite is held is a legal holiday, and employees must be allowed to vote. General elections also are considered legal holidays within the Virgin Islands, and employees who give prior notice are entitled to two hours off from work to vote, without loss of pay.

Twenty states and the District of Columbia do not have time-off-to-vote laws. Those states are: Alabama, Connecticut, Delaware, Florida, Idaho, Indiana, Louisiana, Maine, Michigan, Mississippi, Montana, New Hampshire, New Jersey, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, Vermont and Virginia. While Mississippi law does not specifically require time off to vote, employers cannot increase or decrease an employee’s wages or salary based on voting or nonvoting for any particular candidate(s).

A table summarizing state laws follows.

About CCH INCORPORATED

CCH INCORPORATED is a leading provider of employment law and human resources information for attorneys and human resources professionals. The CCH Human Resources web site is hr.cch.com. Headquartered in Riverwoods, Ill., CCH was founded in 1913 and has served more than four generations of business professionals and their clients. CCH is a Wolters Kluwer company (www.wolterskluwer.com) and is part of the Wolters Kluwer Legal division. Wolters Kluwer is a leading multinational publisher and information services company. Wolters Kluwer has annual revenues (2003) of €3.4 billion, employs approximately 18,750 people worldwide and maintains operations across Europe, North America and Asia Pacific. Wolters Kluwer is headquartered in Amsterdam, the Netherlands. Its depositary receipts of shares are quoted on the Euronext Amsterdam (WKL) and are included in the AEX and Euronext 100 indices.

TIME OFF TO VOTE IN ELECTIONS UNDER STATE LAWS

SOURCE: CCH INCORPORATED LABOR LAW REPORTS, 2004

State

Employees Affected

Time Allowed

Must Employee be Paid?

Must Employee Make Application?

May Employer Specify Hours?

Penalty for Violation

Alaska

Any voter

Enough time to vote, unless 2 hours available before or after work

Yes

*

*

*

Arizona

Any voter

Up to 3 hours unless polls open 3 hours before or after work

Yes

Yes

Yes

Fine of $2,500, jail up to 6 months; for enterprises, fine up to $20,000

Arkansas

Any voter

Work hours must be scheduled to allow employees opportunity to vote

*

*

*

Fine of $25 to $250

California

Any voter

Enough time at start or end of work to vote in statewide election, when added to free time during voting hours

Limited to 2 hours

Yes, 2 work days before election

At beginning or end of shift

*

Colorado

Any voter

2 hours unless polls open 3 non-working hours

Yes, but limited to 2 hours for hourly workers

Yes

Yes, at beginning or end of shift

Fine of up to $1,000 and/or jail up to 1 year; corporations also face forfeit of charter and right to do business in state

Georgia

Any voter

Up to 2 hours where necessary, unless 2 hours available before or after work

Fine of $100 to $500 and/or jail up to 1 year (first offense). Corporations also face forfeiture of charter

North Dakota

Any voter

Employers are encouraged to provide time off to vote when employee’s regular work schedule conflicts with times polls are open

*

*

*

*

Ohio

Any voter

Reasonable time (amount not specified)

4

*

*

Discharge or threat of discharge prohibited; fine of $50 to $500

Oklahoma

Any voter

2 hours, more if necessary, except where employee has 3 hours before or after work to vote

Yes, if vote is cast

Yes

Yes

Fine of $50 to $100

South Dakota

Any voter

2 hours, unless polls open 2 non-working hours

Yes

*

Yes

Fine up to $200 and/or jail up to 30 days

Tennessee

Any voter

Up to 3 hours unless polls open 3 hours before or after work

Yes

Yes

Yes

*

Texas

Any voter

Amount not specified; none if polls open for 2 non-working hours

Yes

*

Yes5

Fine up to $500

Utah

Any voter

2 hours between opening and closing of polls, unless polls open 3 or more non-working hours

Yes

Yes

Yes

Fine up to $1,000 and/or jail up to 6 months; for corporations, fine up to $5,000

Washington

Any voter

Up to 2 hours6

Yes

*

*

*

West Virginia

Any voter

Up to 3 hours, if necessary, between opening and closing of polls

Yes, unless has 3 hours non- working time to vote and chooses not to do so

In writing 3 days before election

*7

For corporations, fine up to $1,000; other employers/ individuals, fine up to $500 and/or jail up to 6 months

Wisconsin

Any voter

Up to 3 hours while polls open

No

Yes

Yes

*

Wyoming

Any voter

1 hour, unless polls open 3 or more consecutive non-working hours

Yes, if vote is cast

*

Yes, exclusive of meal times

Fine up to $1,000 and/or county jail up to 6 months

*No express provision.

1

If polls open before or after work, then enough time, when added to free time, to vote, up to 2 hours.2May not include regular lunch period.3Also up to 4 hours to request application or execute absentee ballot, on day appearing before clerk, during business hours.4No provision but Attorneys General have construed law to require pay; in New Mexico, limited to 2 hours for hourly paid workers, except where workday ends more than 3 hours before polls close and no loss of pay; in Ohio, limited to salaried employees.5No provision but Attorney General has construed law as giving employer right to designate hours, provided sufficient time is allowed.6Does not apply if, after knowledge of work schedule on such election date, employee has sufficient time available for an absentee ballot to be secured.7Employer may schedule time off to vote in essential government, health, hospital, transportation and communication services and in production, manufacturing and processing works requiring continuity of operations, but ample and convenient time and opportunity to vote.